Yes, No, Or Maybe? Did Aetna Threaten The DOJ Over Their Proposed Merger?

So did Aetna actually threaten the DOJ?

onAugust 29, 2016 at 2:27 PM

Three surgeons in operating room, mid section By now we’ve all heard that Aetna’s pulled out of participating in Obamacare. And importantly, in a carefully worded statement to the Department of Justice, while it was deliberating the healthcare company’s merger with Humana, Aetna indicated they’d be leaving the healthcare exchange if their merger was blocked by the Department of Justice.

Now we know the DOJ rejected the merger and Aetna did scale back its participation in the Affordable Care Act exchange. But the way that lawyers are interpreting Aetna’s bold move has really varied. As Corporate Counsel reports, some experts see the move as an unacceptable threat:

Aetna’s letter and more recent statements outraged San Diego antitrust attorney William Markham, who calls Aetna’s conduct a “blatant threat.” Markham stresses that he is not a class action or consumer attorney, and mainly represents companies. “But I feel strongly about this. We have a dominant provider threatening to throw a wrench into [the public exchange] which is providing insurance to millions of people who didn’t have it.”

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While others took a much more charitable view of the decision, even cloaking it in the language of professional responsibility:

Andrea Murino, co-chair of Goodwin Procter’s antitrust practice in Washington, D.C., says that she wouldn’t characterize Aetna’s warning as a threat. “Part of your job as the advocate is to make sure that DOJ appreciates the reverberations that will occur,” Murino says. “It is very common for a party to say: If you stop this transaction, here are the five things that will happen.”

Perhaps unsurprisingly, the professor asked about Aetna’s move is much more comfortable seeing the shades of gray in the situation:

George Hay, antitrust law professor at Cornell Law School and the former director of economics for the DOJ’s antitrust division, says that he doesn’t know if Aetna was issuing a threat. If so, Hay says, “it’s very, very rare, because a threat never works. The antitrust division has a remarkable amount of independence.”

But if the interpretation is that Aetna was simply making a statement of fact, reporting something the company planned to do, then it is not unusual nor inappropriate, Hay adds. But then the law professor questions Aetna’s claim that the merger would help them in the public exchanges. “Was it a credible claim?” Hay asks. “The burden is on them to prove it.”